Decision 88: Balance of Power under the Iraq Constitution

JURIST Contributing Editor Haider Ala Hamoudi of the University of Pittsburgh School of Law says that even though Decision 88 may be troubling, Iraqi Constitutional Law is far from settled and that competing authorities must now recalibrate their efforts ...

Not long ago, Iraq's Federal Supreme Court issued a decision, published in early 2011, that has caused some level of uproar within Iraq's political classes. The decision, Number 88 of 2010, effectively subjects independent agencies to some level of greater control by Iraq's executive, leading members of Parliament to describe this as the first step in a rising dictatorship. Given the hyperbole, quite excessive in my view, that has been attached to some of the sentiments, it is worth exploring the decision, lengthy by Iraqi standards, what it means, and how the problems it addresses might be solved.

To be sure, though I am often a defender of Iraq's highest court, this opinion is troubling. Nevertheless, the problem of constitutional interpretation with which the Court was faced was also quite real. The provisions of Iraq's constitution as they concern independent agencies are anything but clear, and in fact leave a great deal to be filled in by post ratification constitutional practice. The Constitution creates no less than thirteen independent agencies, with Article 108 specifically authorizing the addition of others "according to need and necessity." But the greater difficulty lies not so much in the number of agencies, but in the nature of their relationship to the three branches of government. Some are "connected" to the legislature and others to the executive. Another, the Central Bank, is "responsible" before the legislature.

Still others are to be monitored by the legislature, while a fourth set are connected to the legislature and coordinate with executive bodies and judges. This is only a partial list. Leaving aside two independent commissions where the relationship is completely undefined, I have been able to identify no less than seven different forms of interrelationship as between a given independent agency and other bodies of the state, all using terms as vague and difficult to understand as "connected," "responsible to," "under monitoring from" and the like. The fact that these terms were not elaborated on was quite frustrating to the Court, as it would be to anyone seeking to understand the provisions.

In the more salient part of the opinion, the Court effectively distinguished as between two forms of relationship--"connection" (irtibat) and everything else. The former term referred to the power of the body in question to establish general policies over the agency, though it did not authorize interference in day to day decision-making or expenses, as these are agencies which are supposed to be independent "financially and independently." All other terms, whether they be "responsible," "monitoring" or anything else, were used exclusively as concerned legislative control, and thus they referred to the normal functions of a parliament to exercise authority over any branch of the executive.

The problem, however, lay in the part of the opinion that dealt with residual authority. This comes in two forms. The first is that even as for those agencies that are considered to be "connected" to the legislature, the executive branch has some level of supervisory control over them, in keeping with its core executive functions as set out in Article 80(1) of the Constitution. More troubling, as for those agencies where no connection is mentioned at all, including the all-important Central Bank and the Independent High Electoral Commission, the Court held that the executive holds the power to establish general policies, meaning such agencies are by implication "connected" to the executive. Legislatures globally by their nature, the Court reasoned, cannot exercise such powers of policy setting, and thus in the absence of clear constitutional directive, and given (in the Court's mind) the need to connect these bodies to some branch of government that is accountable, the executive is the only possibility.

To some extent, the vociferous objections of members of Iraq's legislature and their insistence on the importance of maintaining the independence of agencies like the independent electoral commission might be taken with a grain of salt. The same legislature had previously sought through legislation to exercise precisely the same level of control over the electoral commission the executive now possesses, by declaring the commission "connected" to the legislature in law even though the Constitution had said no such thing. But self-serving diatribes aside, the concern remains. One hardly wants independent agencies like a Central Bank and an electoral commission to be excessively influenced by any political branch, and the Court's language, while stressing some level of independence, does subject them to the broad policy guidelines of the executive.

Moreover, to continue with the criticism, it is fair to compare the reasoning of Decision 88 of 2010 with Decision 43 of 2010, where the Court interpreted Article 60 of the Constitution as denying the right of the legislature to make its own laws. In that case, the Court indicated, properly, that Article 60(1) permits a "bill" to be presented by the executive to the legislature, and Article 60(2) only permits members and legislative committees to offer "recommendations of law." The latter, the Court concluded, were supposed to be recommendations provided to the executive, to be turned into bills. Leaving aside precisely what the purpose of a Constitution authorizing a "recommendation" of this sort is (couldn't any human being offer such a "recommendation" to Iraq's executive after all?), the reasoning is linguistically plausible given the odd distinction provided in Article 60. Still, in decision 88, the Court was quick to point to the lack of legislatures globally to set policies for agencies. If it had done the reverse in Decision 43 - if, that is, the Court had considered the general powers of legislatures globally, it surely would have noted that legislatures might not be generally empowered to set powers for agencies, but they are amply empowered to make their own laws. The Court could also have read the general legislative power set forth in Article 61 (1) to "enact the federal legislation" in connection with Decision 43 as broadly as it read the powers of the executive to oversee government bodies in Article 80(1) in connection with Decision 88 and found residual power for the legislature in Decision 43 similar to that it granted to the executive in Decision 88.

May we conclude from these cases that the Court is simply in the current Prime Minister's employ and is authorizing the rise of an incipient dictatorship as some in Iraq's parliament would attest? Certainly not, as the Court does not always side with the executive. Not only did it rule against his coalition on electoral results, it also ordered an ally of his removed from a post as provincial governor, and it recently held, over the executive's strong objection, in Decision 68 of 2010 that a recent Civil Service Commission Law was validly enacted even if the executive had second thoughts about submitting it. The final of these should not be discounted. Such a commission has the potential to reduce considerably the executive power over personnel decisions, whether or not it is "connected" to the executive.

Moreover, it does have to be noted that the executive's power to submit legislation and to set policy for independent agencies does not lie with the Prime Minister himself, but the Council of Ministers. In many nations, that might not matter, as the Prime Minister controls his cabinet effectively. In Iraq, this is hardly true, and in fact, until the recent decision, the criticism of Iraq's executive was that it was too broad-based, too weak, and too diffuse to be effective. Surely it cannot both be ineffective because power is diffused too broadly within it and also be the vehicle for another centralized dictatorship at the same time.

But most importantly, and to get to the solution that naturally arises given the above, as the Court noted, Iraq is a parliamentary system, and the legislature has ample tools to check executive power. It can call the heads of independent agencies in for questioning and ask about excessive executive interference. It can investigate credible claims of the same by a minister or the entire Council of Ministers. It can even bring down the government through a vote of no confidence. This is to say nothing of the fact that the Court has limited the extent of executive interference in independent agencies in its opinion. While the executive might have the powers implied by "connection," in all likelihood what that might mean as opposed to unlawful interference in individual instances is going to be litigated again. We are at the beginning, that is, of a long period of wrangling as between different government branches. One setback via a less than ideal decision, in a parliamentary democracy, is not a time for despair, only one for recalibration of efforts among competing authorities.

Haider Ala Hamoudi is a professor at the University of Pittsburgh School of Law. The American-born son of Iraqi parents, he has lived and worked in Iraq and has been a legal advisor to the Iraqi government, experiences he describes in his book, Howling in Mesopotamia (Beaufort Books). He has a blog on Islamic law at muslimlawprof.org

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